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Host Tom Temin brings you the latest news affecting the federal community each weekday morning, featuring interviews with top government executives and contractors. Listen live from 6 to 9 a.m. or download archived interviews below.

Feds' private lives: what's legal and what's not

When federal employee Ayo Kimathi's racist website caught the public eye, the
Homeland Security Department put him on administrative leave. The agency's
decision left many wondering how the First Amendment plays into Kimathi's website
and his rights as a citizen to express freedom of speech.

"Our First Amendment rights are not absolute — there's a balancing act,"
said Debra Roth, employment lawyer and partner at Shaw Bransford & Roth, on the
Federal Drive with Tom Temin and Emily
Kopp. "It's just like crying 'fire' in a movie theater, causing disruption
and panic."

Kimathi's website criticizes whites, gays and blacks who integrate with whites
and those of mixed race, The Associated Press reports.

He is especially under scrutiny because of his status as a public employee.
Kimathi works as an acquisitions officer for Immigration and Customs Enforcement,
dealing with small businesses.

"What [employees] do off duty is their business, their private lives," Roth said.
This applies to federal employees as well, except for when their private actions
could negatively affect their employer. "If it impacts the efficiency of your
agency's mission, if it brings notoriety to the U.S. Government, that can be the
basis for the government to take action against you, principally to
remove you from federal service for your off-duty conduct."

Homepage of War on the Horizon

In Kimathi's case, the beliefs he verbalizes are extreme and considered hate
crimes under federal law. He advocates for racial war on his website, saying, "WOH has
dedicated our time and expertise to properly educating black people to prepare for
racial warfare... We'll see you on the battlefield."

Kimathi is on administrative leave most likely because officials are unsure of his
connection to the website, Roth said. "If it's his website, he's launched it, he's
the main author of the content and the principal person behind it, they're likely
to take action against him." She said the action will most likely be to try and
remove Kimathi from federal service.

Federal employees in the executive branch are governed by the Government Ethics
Regulations. "They need to get permission from their agency, and that permission
is based upon whether or not those outside activities conflict in any way with the
mission of the government," Roth said.

Employees file an application for outside activities, which goes to the ethics
officer of the agency.
"Managers in a vacuum couldn't make that determination because it's governed by
regulation and statute — that's a conflict of interest," Roth said. The
decision on whether the activity conflicts with the agency's mission is a combined
effort of ethics officers, attorneys, human resources and management.

Kimathi reportedly submitted his application to the ethics officers, and they
granted him permission. Roth proposed two possibilities for what happened. "It
sounds like either, they didn't go online and look at the website, or the website
wasn't launched yet, and they had nothing to look at."

Whether Kimathi will be dismissed from federal service is still unknown, but
what's certain is that many of his colleagues would feel uncomfortable if he were
to return to the workplace.

"It's being reported that it's starting to garner fear in his colleagues," Roth
said. The government is "really acting as an employer would act. And they're
probably going to say, 'You're scaring your colleagues. You're advocating
violence. You can't come into our workplace.'"